United States District Court, D. Arizona
Honorable Susan M. Brnovich, United States District Judge
before the Court is Plaintiff Enedina Coronado's Motion
for Leave to File First Amended Complaint. (Doc. 18,
“Mot.”). Defendant Costco Wholesale Corporation
(“Costco”) opposed the motion, (Doc. 19,
“Resp.”), and Coronado filed a reply, (Doc. 20,
“Reply”). For the reasons below, the Court GRANTS
IN PART the Motion for Leave.
Enedina Coronado and Armando Romero, a married couple, filed
their initial complaint in the Maricopa County Superior Court
on October 29, 2018, alleging that on November 17, 2017,
Coronado slipped and fell at a Costco store due to a soap
spill on the floor. (Doc. 1-3 at 2-4). Costco removed the
action to this Court on November 21, 2018. (Doc. 1). On
February 11, 2019, the Court gave the parties sixty days to
amend pleadings. (Doc. 16). On April 10, 2019, Plaintiffs
filed this Motion for Leave to File First Amended Complaint.
Plaintiffs do not seek to add new parties but rather ask to
(1) add a product liability claim (2) add a breach of implied
warranty claim, (3) remove unnamed Does and entities, and (4)
dismiss the claims of Armando Romero.
for amendments made “of course” or pursuant to
stipulation, leave of court is required to amend a pleading.
Fed.R.Civ.P. 15(a). “The court should freely give leave
when justice so requires.” Id. “[R]ule
15's policy of favoring amendments to pleadings should be
applied with extreme liberality.” DCD Programs,
Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987)
(quotation marks and citation omitted). The underlying
purpose and policy of Rule 15 is “to facilitate
decision on the merits, rather than on the pleadings or
technicalities.” Nunes v. Ashcroft, 375 F.3d
805, 808 (9th Cir. 2004) (citation omitted).
Court must consider the following five factors when deciding
whether to grant a motion to amend: (1) bad faith; (2) undue
delay; (3) prejudice to the opposing party; (4) futility of
amendment; and (5) whether the movant has previously amended
its complaint. Id. Not all of the factors are given
the same weight, and the Ninth Circuit gives the greatest
weight when considering any prejudice to the opposing party.
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
1048, 1052 (9th Cir. 2003). “Absent prejudice, or a
strong showing of any of the remaining . . . factors, there
exists a presumption under Rule 15(a) in favor of
granting leave to amend.” Id. (citation
omitted) (emphasis in original). The Ninth Circuit has stated
that “[f]utility of amendment can, by itself, justify
the denial of a motion for leave to amend.” Bonin
v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
“However, denial on [the ground of futility] is rare
and courts generally defer consideration of challenges to the
merits of a proposed amended pleading until after leave to
amend is granted and the amended pleading is filed.”
Duhn Oil Tool, Inc. v. Cooper Cameron Corp., No.
CV-F-05-1411 OWW/GSA, 2010 WL 596312, at *14 (E.D. Cal. Feb.
16, 2010). “[A] proposed amendment is futile only if no
set of facts can be proved under the amendment to the
pleadings that would constitute a valid and sufficient
claim[.]” Miller v. Rykoff-Sexton, Inc., 845
F.2d 209, 214 (9th Cir. 1988), overruled on other grounds
by Ashcroft v. Iqbal, 556 U.S. 662 (2009). “The
power to grant leave to amend . . . is entrusted to the
discretion of the district court, which determines the
propriety of a motion to amend by ascertaining the presence
of any of [the] factors.” Serra v. Lappin, 600
F.3d 1191, 1200 (9th Cir. 2010) (internal quotation marks and
citation omitted). “Generally, this determination
should be performed with all inferences in favor of granting
the motion.” Griggs v. Pace Am. Grp., Inc.,
170 F.3d 877, 880 (9th Cir. 1999).
opposition argues only that the Court should deny
Plaintiff's request to amend her complaint because the
additional claims made by Plaintiff do not set forth viable
causes of action, rendering the amendment futile. (Resp. at
3). First, Costco argues that Plaintiff's proposed
“products liability” claim is futile under
Arizona law. Costco argues that by claiming the bottle that
allegedly leaked was defective, Plaintiff is attempting to
hold Costco “strictly liable, ” contrary to
Arizona law regarding premises liability. (Resp. at 3). While
Costco has cited persuasive case law from other jurisdictions
advocating for the ultimate failure of such a claim, (Resp.
at 4-6), it has not cited any Arizona case law squarely
prohibiting Plaintiff from bringing this claim. Because of
Rule 15's policy favoring amendments, and because the
inquiry Costco asks the Court to make is more properly suited
for a motion to dismiss, the Court will grant Plaintiff's
motion in regard to adding the products liability claim.
Costco argues that Plaintiff's proposed “breach of
implied warranty” claim is futile under Arizona law.
(Resp. at 8). Costco argues that this claim is futile
“because Arizona law has expressly held that any breach
of warranty claims are merged into products liability claims
when asserted in a tort context such as this one.”
(Resp. at 8). Costco cites to several Arizona decisions
supporting its argument. See Wetzel v. Commercial Chair
Co., 500 P.2d 314, 316 (Ariz.Ct.App. 1972)
(“[P]ersonal injuries caused by defective products
should be based upon tort law.”); see also Benson
v. Stryker Corp., No. CV 08-351-TUC-FRZ, 2009 WL
10708713, at *2 (D. Ariz. Feb. 24, 2009) (“[T]he Court
agrees that Plaintiff's implied warranty claim is subject
to dismissal as it merges into Plaintiff's strict
liability claim against Defendant under the circumstances of
this case.”); Scheller v. Wilson Certified Foods,
Inc., 559 P.2d 1074, 1076 (Ariz.Ct.App. 1976)
(“[T]he theory of liability under implied warranty has
been merged into the doctrine of strict liability in tort, so
that it is on this latter doctrine that the plaintiffs claim
must stand or fall.”). In reply, Plaintiff fails to
even mention Costco's argument, and merely argues that
amendments under Rule 15 should be “freely given”
and Plaintiff has met the requirements of Rule 8.
Court agrees with Costco's assertion that a claim of
breach of implied warranty merges into a products liability
claim under the facts here. As such, the Court finds that
adding the breach of implied warranty claim would be futile
and denies Plaintiffs motion to add this claim.
IT IS ORDERED that Plaintiffs' Motion to
Amend Complaint (Doc. 18) is GRANTED IN
PART. Plaintiffs must file a separate clean copy of
their First Amended Complaint in compliance with ...